New York State Court of Claims

New York State Court of Claims

SABEL v. THE STATE OF NEW YORK, #2002-019-524, Claim No. NONE, Motion No. M-64717


Synopsis


Claimant's motion for permission to file late claim relative to pedestrian slip and fall on State roadway due to height differential between new and old road surfaces is granted.

Case Information

UID:
2002-019-524
Claimant(s):
REBECCA SABEL and ROBERT SABEL The Court sua sponte amends the caption to reflect the State of New York as the only proper defendant.
Claimant short name:
SABEL
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court sua sponte amends the caption to reflect the State of New York as the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-64717
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
PETER E. TANGREDI & ASSOCIATESBY: Wilbert Ramos, Esq., of counsel
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Joseph F. Romani, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
March 28, 2002
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Claimants seek permission to file a late claim pursuant to Court of Claims Act (hereinafter "CCA") 10 (6). The State of New York (hereinafter "State") opposes the motion.


The Court has considered the following papers in connection with this motion:
  1. Notice of Motion No. M-64717, dated February 8, 2002, and filed February 13, 2002.
  2. Affirmation of Wilbert Ramos, Esq., in support of motion, dated February 8, 2002.
  3. "PETITION" of Rebecca Sabel, in support of motion, dated and sworn to December
31, 2001, with attached exhibit.
  1. Proposed Claim.
  2. Affirmation of Joseph F. Romani, AAG, in opposition to motion, dated February 21, 2002, and filed February 25, 2002.
The proposed claim indicates that Claimant[1] "[s]tepped from the newly paved roadway onto the old road surface causing her to fall sustaining serious and permanent injuries" while crossing Route 42, opposite a roadside grocery store called Shopron Camp, in Fallsburgh, New York on August 26, 2000. (Proposed Claim, ¶ 3). Claimant has submitted photographs depicting the location of her fall which will be discussed in more detail hereinbelow.


As a threshold issue, the Court notes that it has jurisdiction to review and determine this motion since it was filed within three years from the date of accrual. (CPLR 214; CCA 10 [6]).

Turning to the substance of the motion, the factors the Court must consider in determining a properly framed CCA 10 (6) motion are whether:

1. the delay in filing the claim was excusable,

2. the State had notice of the essential facts constituting the claim,
3. the State had an opportunity to investigate the circumstances underlying the claim,

4. the claim appears to be meritorious,
5. the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney

general a notice of intention resulted in substantial prejudice to the State, and

6. there is any other available remedy.


The Court will first examine the factor that has been characterized as the most decisive component in determining a motion under CCA 10 (6), namely whether the proposed claim appears meritorious, since it would be futile to permit a meritless claim to proceed. (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). In order to establish a meritorious claim, Claimant must establish that the proposed claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe that a valid claim exists. (Id., at 11). Here, the State argues that Claimant's proposed claim fails to provide sufficient details such as how the accident occurred, a description of the defect at issue, or the injury suffered.


In examining the issue of merit the Court is permitted to review the record as a whole, including supporting affidavits and exhibits thereto. (Id., at 11). Although the Court agrees that the proposed claim, in and of itself, is lacking in detail, much of the information the State argues is missing is contained in the moving papers as a whole.[2] By way of example, the State contends that the papers do not adequately describe how it is alleged to be liable or "exactly what condition is alleged to be defective". (Affirmation of Joseph F. Romani, AAG, ¶ ¶ 4 & 6). However, the attorney's affirmation contains specific references to "uneven" pavement and the State's creation of this condition through its "re-paving" and "resurfacing" of the roadway. (Affirmation of Wilbert Ramos, Esq., ¶ ¶ 4 & 6 [f]). Moreover, attached to the attorney's affirmation are photographs depicting the accident location in which a height differential between two layers of pavement is visible. Based upon the key words quoted above, together with said photographs,[3] it seems clear that Claimant's focus is a height differential between the older and newer road surfaces alleged to have been created by the State's resurfacing of the subject roadway. Also, another piece of information alleged to be missing by the State, namely the type of injury, is found in the attorney's affirmation in which Claimant's injury is listed as an oblique fracture of the distal fibula of the left ankle. (Affirmation of Wilbert Ramos, Esq., ¶ 3; Affirmation of Joseph F. Romani, AAG, ¶ 4). Accordingly, in viewing this record as a whole, the Court finds reasonable cause to believe that a valid claim exists.


Next, Claimant's excuse for her delay is that she filed a "Notice of Claim" with the wrong entities believing that the County of Sullivan and Town of Fallsburgh owned and maintained the subject roadway. It is well-settled that a mistake relative to the proper entity to sue, whether it arises from ignorance of the law or facts or mere confusion, is not an acceptable excuse. (Erca v State of New York, 51 AD2d 611, affd 42 NY2d 854). As such, this factor weighs against Claimant.


Although the next three factors of notice, opportunity and prejudice are typically discussed together, Claimant's arguments relative to notice warrant separate discussion in this instance. More specifically, Claimant alleges that she does not need to establish notice of the essential facts constituting the claim because the State created the defective condition. (Affirmation of Wilbert Ramos, Esq, ¶ ¶ 2, 4, 6 [a] & [b]). In this Court's view, however, it appears that Claimant is confusing the concept of notice relating to her burden of proof at trial as compared to her burden of establishing notice of the essential facts constituting a claim for the purpose of a CCA 10 (6) motion. Claimant is correct that at trial, notice - actual or constructive - need not be established when a defendant created the dangerous condition at issue. (Browne v Big V Supermarkets, 188 AD2d 798, lv denied 81 NY2d 708). This principle, however, is distinct from Claimant's obligation to establish notice of the essential facts constituting a claim in a late filing application, which is not obviated when the State created the defective condition. The concept of notice in a late filing application relates to the State's notice of an accident after an accident has actually occurred, thereby permitting the State to investigate the claim if it so chooses. (Wolf v State of New York, 140 AD2d 692; Matter of Crawford v City Univ. of N. Y., 131 Misc 2d 1013). As such, the State's creation of a dangerous condition does not equate to notice of the essential facts constituting a claim. Otherwise, in late filing motions, the State would be deemed to have notice of every claim arising from a dangerous condition it created, even before an accident occurs. Accordingly, this Court finds that Claimant's argument that she need not establish notice of the essential facts constituting a claim in a late filing application when the State is alleged to have created the dangerous condition to be without merit. Claimant has not otherwise established that the State had notice of the essential facts constituting this claim within the requisite 90 day statutory period following this accident. Thus, the Court finds this factor weighs against Claimant.


With respect to the State's opportunity to investigate this accident, Claimant concedes this point and thus this factor weighs against her application. (Affirmation of Wilbert Ramos, Esq., ¶ 6 [c]). On the issue of prejudice, Claimant contends that the State will not suffer substantial prejudice if her application is granted, because the conditions at the accident scene remain unchanged since the date of the accident. Claimant avers that "the condition has not changed since the date of the occurrence" and that the photographs depict "the location and condition that caused my injuries."[4] (Petition of Rebecca Sabel, ¶ 9). For the purposes of this motion "[f]acts stated in a motion for leave to file a late claim against the State are deemed true for purpose of motion, when not denied or contradicted in opposing affidavits [citations omitted]." (Sessa v State of New York, 88 Misc 2d 454, 458, affd 63 AD2d 334, affd 47 NY2d 976). The State has not contradicted this factual representation from anyone having first-hand knowledge of the scene. As such, the Court finds that without any proof establishing the condition at the accident location has changed that the State will not suffer substantial prejudice if the requested relief is granted. (Matter of Santana v New York State Thruway Auth., supra, 92 Misc 2d, at 13). Accordingly, the Court finds the factor of prejudice weighs in Claimant's favor.


Finally, neither party argues that there are any other alternative remedies available to Claimant. Thus, this factor weighs in Claimant's favor.


Accordingly, upon reviewing and balancing all of the factors enumerated in CCA 10 (6), the Court finds that two of the six statutory factors, including the all-important issue of merit, weigh in favor of Claimant's motion for permission to late file.


In view of the foregoing, IT IS ORDERED that Claimant's motion for permission to file a late claim, Motion No. M-64717, is GRANTED. Claimant shall file a claim in the Office of the Clerk and serve a copy of the claim upon the attorney general within sixty (60) days from the date of filing of this Order in the Chief Clerk's Office of this Court. Furthermore, the claim should be revised to reflect the terms of this Decision and Order. The service and filing of the claim shall be in conformity with all applicable statutes and rules of the Court with particular reference to CCA § § 10, 11 and 11-a.


March 28, 2002
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims




[1]"Claimant" will refer solely to Rebecca Sabel, since the claim of Robert Sabel is derivative in nature.
[2]Although the proposed claim itself is not verified, Claimant's "petition" is verified.
[3]See discussion relative to said photographs infra p. 5.
[4]The date these photographs were taken is not disclosed.